Uitspraak
Cause list number: 22-003669-21
Public Prosecutor’s Office number: 10-750439-20
Date of judgment: 20 April 2023
JUDGMENT AFTER TRIAL
The Hague Court of Appeal
joint bench for criminal proceedings
Judgment
rendered on appeal against the decision of the District Court of Rotterdam of 2 December 2021 in the criminal case against the accused:
[accused],
born in [place of birth] on [day of birth] 2001,
address: [address].
Examination of the case
This judgment was rendered as a result of the examination at the hearing in the first instance and the examination at the hearing in the appeal proceedings of this Court of Appeal.
The Court of Appeal has taken cognisance of the request of the Advocate General and of that which has been put forward by and on behalf of the accused.
Procedure
In the first instance, the accused was sentenced with regard to the charges under Counts 1 and 2 to a term of imprisonment of 24 months, with credit for the time spent in pre-trial detention, 18 months of which were suspended, with a probationary period of three years, subject to the imposition of the special conditions declared immediately enforceable as mentioned in the decision appealed against. The accused was also sentenced to 200 hours of community service or, in the alternative, 100 days of detention, with credit for the time spent in pre-trial detention. In addition, a measure to influence behaviour or restrict freedom as referred to in Article 38z of the Criminal Code was imposed on him and a decision was taken regarding the seized items, as described in more detail in the decision appealed against.
The pre-trial detention order - already suspended - was lifted.
An appeal was lodged against the decision on behalf of the accused.
Indictment
The accused - after adjustment of the indictment at the hearing in the first instance – has been charged with the following:
1.
in or around the period from 1 October 2019 up to and including 27 October 2020, in Zwijndrecht and/or elsewhere in the Netherlands,
in or around the period from 1 October 2019 up to and including 27 October 2020, in Zwijndrecht and/or elsewhere in the Netherlands,
either alone or jointly and in conjunction with (an)other person(s),
participated in an organisation, namely "The Base" (an international network of right-wing extremists),
an organisation whose intent it is and/or was to commit terrorist offences, namely,
A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 Criminal Code) (to be) committed with terrorist intent and/or
B. manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or;
C. murder (to be) committed with terrorist intent (within the meaning of Articles 289/289 in conjunction with Article 83 of the Criminal Code) and/or;
D. conspiracy and/or deliberate preparation of and/or abetment to commit the aforementioned offences (within the meaning of Article(s) 176a and/or 289a and/or 96, paragraph 2 of the Criminal Code) and/or;
E. possession of one or more category II and/or III weapons and/or ammunition (within the meaning of Article 26, paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act);
2.
at one (or more) point(s) in time in or around the period from 1 October 2019 up to and including 27 October 2020, in Zwijndrecht and/or elsewhere in the Netherlands,
at one (or more) point(s) in time in or around the period from 1 October 2019 up to and including 27 October 2020, in Zwijndrecht and/or elsewhere in the Netherlands,
either alone or jointly and in conjunction with (an)other person(s),
(on each occasion)
A. publicly incited, by means of documents and/or images, to (a) terrorist crime(s), or (a) crime(s) in preparation or facilitation of a terrorist crime, and/or any criminal offence and/or violent action against public authority,
by
( i) posting in (public) Telegram group(s) "Bua Sneatcha 14/88" one or more message(s) and/or image(s), among which:
- the text messages: "Cut a nigger throat" and "Kill all non white niggers everywhere"
(posted on 8 November 2019, p. 621) and/or
- the text message: "I want to kill them all" after another participant in that group had posted the following text message: "You fine gentlemen want to participate in a Instagram raid against a bunch of drag queens trying to convert childeren to homosexuality?"
(posted on 22 November 2019, pp. 617/618), and/or
- an image, showing a kneeling (Jewish) man being shot through the head
(posted on 22 November 2019, p. 618), and/or
- the text message "The base" in response to another participant's question "How can I find local Natsoc division/group" (posted on 25 November 2019, p. 627), and/or
- the text message "We will rise from the ashes of history"
(posted on 25 November 2019, p. 630), and/or
- the text message: "That is also allowed" and "I'll shoot at Jewish boats" in response to another participant's message, stating: "But, but I also want to kick nigger slaves to death".
(posted on 8 September 2020, p. 636), and/or
(ii) (co-)managing the (public) Telegram group
"
/Jeugdstorm" and/or posting in that group one or more message(s) and/or image(s), among which:
/Jeugdstorm" and/or posting in that group one or more message(s) and/or image(s), among which:
- the text messages "Walk behind him and then slit throat" and/or "kidnap" in response to another participant’s question "Does anyone have a good tactic for taking someone's life?"
(posted on 2 February 2020, p. 639), and/or
- the text messages "We are 1 of the growing groups in nl and we are siegepilled" and/or "we do raids and we hunt pedos etc and sometimes siegepilled things" and/or "we are kind of the dutch siegepilled group" (posted on 13 February 2020, p. 641), and/or
- the text message "Or synagogue" in response to another participant’s message, stating "I feel like doing things that also happened in New Zealand too. Called shooting up mosque"
(posted on 21 February 2020, p. 641), and/or
(iii) (co-)managing Whatsapp group J.S.N. and/or posting in that group one or more message(s) and/or image(s), among which:
- " we can kidnap a nigger once and drop him in the forest and then hunt him down"
(posted on 4 April 2020, p. 651),
- " if a civil war comes, we’ll have to kill some white people too because they are not on our side and do not want to change" (posted on 26 July 2020, p. 653),
and/or
B
has distributed, publicly displayed and/or has acquired, or has had in stock for distribution, public display or acquisition,
a document and/or image, inciting to a terrorist crime and/or a crime preparing or facilitating a terrorist crime
and/or to perpetrate any criminal offence and/or violent action against public authority
while he, the accused, and/or his co-perpetrator(s) knew or had serious reason to suspect that the document(s) and/or image(s) contained such incitement,
by
posting in the (public) Telegram group) "Bua Sneatcha" 14/88" an image, showing a kneeling (Jewish) man being shot through the head (posted on 22 November 2019, p. 618).
Request by the Advocate General
The Advocate General has requested that the decision appealed against be set aside and that the accused be sentenced to a term of imprisonment of 24 months, with credit for the time spent in pre-trial detention, 18 months of which are suspended, with a probationary period of three years, with regard to Counts 1 and 2 A and B of the indictment, subject to the imposition of special conditions declared immediately enforceable in accordance with the decision appealed against, with the exception of the special condition mentioned in the third indent. The Advocate General has further requested that the accused be sentenced to a suspended 200 hours of community service or, in the alternative, 100 days of detention, with a probationary period of three years, with credit for the time spent in pre-trial detention.
The decision appealed against
The decision appealed against cannot be upheld, because the Court of Appeal does not agree with it.
Validity of the preliminary summons
The accused was charged under 2 A (i), (ii) and (iii) with "one or more message(s) and/or image(s),
among which".
among which".
The Court of Appeal is of the opinion that the summons, insofar as it relates to the section "among which", should be set aside. As the present file (more than 2,000 pages) contains many text messages and images and the indictment does not give a concrete description of those text messages and/or images that, according to the author of the indictment fall under "among which", nor does it contain their location in the file, the indictment does not meet the requirements set by Article 261, paragraph 1, of the Code of Criminal Procedure for a summons. [1]
The Court of Appeal will partially set aside the preliminary summons insofar as it relates to the term "among which" charged under 2 A (i), (ii) and (iii).
Acquittal of Count 2 A (ii) and (iii)
Telegram group Jeugdstorm - 2 A under (ii)
In accordance with the written arguments, the defence pleaded acquittal of Count 2 A (ii) of the indictment as the utterances were not made in public.
The Advocate General assumes, as would appear from the indictment, that this Telegram group is a closed Telegram group. Furthermore, the Advocate General is of the opinion that the fact that one must be added to the group by the administrator or via a link to see the messages does not preclude these messages from being made in public. Of evident importance is the number of persons to whom the utterance was addressed. Also important is the likelihood that the content of the utterance will become known to others than those to whom the utterance was directly addressed. In this regard, the Advocate General refers to a Supreme Court judgment (Supreme Court, 5 July 2011, ECLI:NL:HR:2011:BQ2009). In that case, the Supreme Court ruled that it was not incorrect or incomprehensible that because the 20 to 25 persons in that group could use the posted text at their own discretion and without restriction, it was foreseeable and factually to be expected in advance for the accused that it would be further disseminated. This also applies to the 21 participants in the Telegram group Jeugdstorm', the Advocate General said.
The Court of Appeal considers the following.
Articles 131 and 132 of the Criminal Code require that the sedition must take place publicly by oral, pictorial or written means. The Internet can be considered a public place, provided that the public has access to the Internet page on which the texts are displayed. Posting utterances on publicly accessible social media places them in the public domain.
Telegram group Jeugdstorm was created on Telegram on 29 January 2020. "Feuerjugend", that is the accused, was added to it. The administrators of the group are Feuerjugend and "[first name]". The group had 21 participants at the time that the accused's phone was seized, namely on 27 October 2020, and the last message was received on 7 October 2020.
This Telegram group appears to have been created because the chat previously used for communication was not deemed safe.
Within Telegram, there are two types of groups:
Private groups: To gain access to these groups, you must be added by the administrator, or you receive a link allowing you to gain access.
Open groups: These are groups that can be found via a search function in Telegram. These groups can be found via open searches.
Together with the defence and the Advocate General, the Court of Appeal assumes, in the absence of evidence to the contrary, that Telegram group Jeugdstorm was a private or in other words closed Telegram group.
Furthermore, the present file does not show that the participants of this Telegram group could use the posted text messages at their own discretion and without restriction. Since this has not been proven, the Court of Appeal, unlike the Advocate General, is of the opinion that for the accused it was neither foreseeable nor factually to be expected that it might - possibly - be further disseminated. The number of 21 participants does not mean either that the Telegram group can be considered public in the aforementioned sense.
Whatsapp group J.S.N. - 2 A (iii)
In accordance with the written arguments, the defence also pleaded not guilty to Count 2 A (iii), as the utterances had not been made in public.
The Advocate General assumes that this group too is a closed group, as it has remained unclear whether this was a closed or open Whatsapp group.
The Advocate General is of the opinion that due to the fact that the composition of the members varied widely, it is not possible to speak of a confidential group. The Advocate General is also of the opinion that, due to the extreme nature of the text messages, there is a high probability of their becoming known to others than those to whom they were directly addressed. Therefore, the Public Prosecution Service is of the opinion that the utterances in Whatsapp group J.S.N. were equally made in public.
The Court of Appeal considers the following.
Whatsapp group J.S.N. is also most likely a closed group of about 30 participants. The accused, along with two others, was the administrator of this group. An administrator can add or remove participants. It is not known how many participants the group had at the time that the accused distributed the text messages, but at the investigated points in time, the group had at least 30 participants.
Contrary to the Advocate General, the Court of Appeal is of the opinion that in this case there are insufficient clues to consider it proven that the messages in Whatsapp group J.S.N. would become known to others because of the varied composition of the members and the extreme nature of their utterances and that the 'in public' component has therefore been met. The extreme nature of the messages does not alter this.
Together with the defence, the Court of Appeal is therefore of the opinion that, since the public access of the utterances required for a declaration of charges proven has not been met, Counts 2 A (ii) and (iii) have not been legally and convincingly proven, so that the accused should be acquitted thereof.
Defence raised
At the appeal hearing - in accordance with the written arguments submitted - the accused's counsel explained why, in the view of the defence, the Royal Netherlands Marechaussee report should be disregarded when assessing the case file.
As the Court of Appeal will not use the Royal Netherlands Marechaussee report in evidence, the defence no longer has an interest in discussing this defence raised.
Declaration of charges proven
The Court of Appeal deems it lawfully and convincingly proven that the accused committed the offence as charged under Counts 1 and 2, on the understanding that:
1.
in
or aroundthe period from 1 October 2019 up to and including 27 October 2020, in Zwijndrecht and/or elsewhere in the Netherlands,
in
or aroundthe period from 1 October 2019 up to and including 27 October 2020, in Zwijndrecht and/or elsewhere in the Netherlands,
either alone or jointly and in conjunction with (an)other person(s),
participated in an organisation, namely "The Base" (an international network of right-wing extremists),
an organisation whose intent it
is and/orwas to commit terrorist offences, namely,
is and/orwas to commit terrorist offences, namely,
A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 Criminal Code) (to be) committed with terrorist intent and/or
B. manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or;
C. murder (to be) committed with terrorist intent (within the meaning of Articles 289/289 in conjunction with Article 83 of the Criminal Code) and/or;
D. conspiracy and/or deliberate preparation of and/or abetment to commit the aforementioned offences (within the meaning of Article(s) 176a and/or 289a and/or 96, paragraph 2 of the Criminal Code) and/or;
E. possession of one or more category II and/or III weapons and/or ammunition (within the meaning of Article 26, paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act);
2.
at one (or more) point(s) in timein
or aroundthe period from
1 October8 November2019 up to and including
27 October8 September2020, in Zwijndrecht and/or elsewhere in the Netherlands,
at one (or more) point(s) in timein
or aroundthe period from
1 October8 November2019 up to and including
27 October8 September2020, in Zwijndrecht and/or elsewhere in the Netherlands,
either alone or jointly and in conjunction with (an)other person(s),
(on each occasion)
A. publicly incited, by means of documents and
/orimages, to
(a)terrorist crime
(s
), or (a) crime(s) in preparation or facilitation of a terrorist crime,and
/orany criminal offence
sand/or violent action against public authority,
/orimages, to
(a)terrorist crime
(s
), or (a) crime(s) in preparation or facilitation of a terrorist crime,and
/orany criminal offence
sand/or violent action against public authority,
by
( i) posting in
(public
)Telegram group
(s)"Bua Sneatcha 14/88"
one or moremessage
(s
)and
/oranimage
(s), among which:
(public
)Telegram group
(s)"Bua Sneatcha 14/88"
one or moremessage
(s
)and
/oranimage
(s), among which:
- the text messages: "Cut a nigger throat" and "Kill all non white niggers everywhere"
(posted on 8 November 2019, p. 621) and
/or
/or
- the text message: "I want to kill them all" after another participant in that group had posted the following text message: "You fine gentlemen want to participate in a Instagram raid against a bunch of drag queens trying to convert childeren to homosexuality?"
(posted on 22 November 2019, pp. 617/618), and
/or
/or
- an image, showing a kneeling (Jewish) man being shot through the head
(posted on 22 November 2019, p. 618), and
/or
/or
- the text message "The base" in response to another participant's question "How can I find local Natsoc division/group" (posted on 25 November 2019, p. 627), and/or
- the text message "We will rise from the ashes of history"
(posted on 25 November 2019, p. 630), and/or
- the text message: "That is also allowed" and "I'll shoot at Jewish boats" in response to another participant's message, stating: "But, but I also want to kick nigger slaves to death".
(posted on 8 September 2020, p. 636), and
/or
/or
(ii) (co-)managing the (public) Telegram group
"/Jeugdstorm" and/or posting in that group one or more message(s) and/or image(s), among which:
- the text messages "Walk behind him and then slit throat" and/or "kidnap" in response to another participant’s question "Does anyone have a good tactic for taking someone's life?"
(posted on 2 February 2020, p. 639), and/or
- the text messages "We are 1 of the growing groups in nl and we are siegepilled" and/or "we do raids and we hunt pedos etc and sometimes siegepilled things" and/or "we are kind of the dutch siegepilled group" (posted on 13 February 2020, p. 641), and/or
- the text message "Or synagogue" in response to another participant’s message, stating "I feel like doing things that also happened in New Zealand too. Called shooting up mosque"
(posted on 21 February 2020, p. 641), and/or
(iii) (co-)managing Whatsapp group J.S.N. and/or posting in that group one or more message(s) and/or image(s), among which:
- "we can kidnap a nigger once and drop him in the forest and then hunt him down"
(posted on 4 April 2020, p. 651),
- "if a civil war comes, we’ll have to kill some white people too because they are not on our side and do not want to change" (posted on 26 July 2020, p. 653),
and/or
B
has distributed,
publicly displayedand
/or has acquired, orhas had in stock for distribution,
public display or acquisition,
publicly displayedand
/or has acquired, orhas had in stock for distribution,
public display or acquisition,
a
ndocument and/orimage, inciting to a terrorist crime
and/or a crime preparing or facilitating a terrorist crime
ndocument and/orimage, inciting to a terrorist crime
and/or a crime preparing or facilitating a terrorist crime
and/or to perpetrate any criminal offence and/or violent action against public authority
while he, the accused
, and/or his co-perpetrator(s)knew
or had serious reason to suspectthat the
document(s) and/orimage
(s)contained such incitement,
, and/or his co-perpetrator(s)knew
or had serious reason to suspectthat the
document(s) and/orimage
(s)contained such incitement,
by
posting in the (public) Telegram group) "Bua Sneatcha" 14/88" an image, showing a kneeling (Jewish) man being shot through the head (posted on 22 November 2019, p. 618).
Any additional charges or charges formulated otherwise have not been proven. The accused should be acquitted of these.
Insofar as the indictment contains linguistic and/or writing errors, these have been corrected in the declaration of charges proven. As appears from that which was discussed during the hearing, the defence of the accused was not harmed as a result.
Evidence-based argumentation
The Court of Appeal bases its conviction that the accused has committed the offences as charged on the facts and circumstances that are included in the evidence and that substantiate the declaration of charges proven.
In those cases in which the law requires the judgment to be supplemented with the evidence or, insofar as Article 359, third paragraph, second sentence, of the Code of Criminal Procedure is applied, with an itemisation thereof, this will be done in a supplement that will be annexed to this judgment.
Further (evidentiary) consideration regarding Count 1
Under Count 1, the accused is charged with participation in a terrorist organisation, namely The Base.
Position of the defence
At the appeal hearing, counsel argued - in accordance with the written arguments that he had submitted - that the accused should be acquitted of the charges under Count 1.
To this end, counsel argued – in short - that:
lawful and convincing evidence is lacking that The Base is a terrorist organisation;
that the accused made no contribution to The Base and
that there was no intent on the part of the accused to participate in a terrorist organisation.
Legal framework
Participation in a terrorist organisation
The Court of Appeal holds first and foremost that participation in an organisation as referred to in Article 140a of the Criminal Code can only exist if the accused belongs to the alliance and participates in or supports actions aimed at or directly related to achieving the aim referred to in that article. [2]
Such participation may consist of the (co-)perpetration of any offence, but also of aiding and abetting, which need not be punishable in themselves, but are indeed aimed at realising the organisation's objective. For participation, it is sufficient that the person concerned be generally aware - in the sense of unconditional intent - that the organisation’s objective was to commit terrorist offences. For the person concerned it is not required to have any form of intent to commit the concrete crimes intended by the terrorist organisation. It is not necessary either for the person concerned to participate or to have participated himself in the commission of crimes that are or were committed by (members of) the organisation.
Assessment by the Court of Appeal
Re (a) The Base as a terrorist organisation
From the documents in the case file, among which the Knowledge Document The Base, drawn up by Dr A.P. van Veldhuizen, and document ‘Beantwoording van vragen The Base' by Dr A.P. van Veldhuizen - added to the file on appeal - the following transpires about The Base.
The Base was founded in July 2018 by the American Rinaldo Nazzaro (operating in digital channels of The Base under the aliases "Roman Wolf" and "Norman Spear").
The Base is a relatively well-organised and internationally branched right-wing extremist organisation: besides leader and founder Nazzaro, there are confidants, cells (two to four individuals) in various western countries, ‘lone wolves’ and a large number of Telegram followers.
Moreover, certain individuals are allegedly appointed or act as recruiters. The recruitment process began with strong recruitment on the right-wing extremist website Fascist Forge. New members are also being sought through social media and flyers.
There is a team conducting virtual job interviews (vetting) with Nazzaro in charge.
New members living in the same country or state are put in touch with one another by the central organisation to form cells. The international organisation also provides a chat channel for each cell on the app Wire. Other tasks of the line-and-staff organisation include distributing propaganda for recruitment as well as calls to violence, hosting the digital environment and offering literature and manuals.
The foregoing leads the Court of Appeal to agree with the District Court that The Base is an international alliance with a certain durability and structure between several persons and thus an organisation as referred to in Article 140 of the Criminal Code.
Intent
The case file shows that The Base aims to accelerate a collapse of ‘the system’, to provoke a race war and to establish a white ethnostate. According to The Base, this development is already underway, and they should accelerate it. This objective can be characterised as the general idea of right-wing extremist accelerationism.
Those who subscribe to the right-wing extremist use of the term accelerationism believe that Western society has been corrupted by Jewish, liberal, socialist and multicultural influences and is therefore gradually but inexorably sliding towards powerlessness and meaninglessness. Accelerationists therefore endeavour to speed up (accelerate) the process that makes Western states hopeless "failed states". Independently operating (accelerationist) cells aim to overthrow Western governments by committing indiscriminate acts of violence that fuel social tensions and ultimately cause social chaos and civil war.
The Base leader Nazzaro puts it himself as follows:
"We want things to accelerate, we want things to get worse in the United States. And from that
point, by virtue of the chaos that ensues, that would naturally present some opportunities for us.
Law and order starts breaking down, power vacuums start emerging for those who are organized
and ready, to take advantage of those." [3]
This opposition to the government stems from the conviction that the elites - according to James Mason (author of 'Siege') led by Jews - are grabbing the history, property and interests of the superior white race. Once the government has collapsed and these elites are powerless, a fresh start can be made. Thus, the ultimate goal of the accelerationists is the establishment of an ethnostate in which white people call the shots and in which social positions are determined primarily on the basis of race and ethnicity. Any sections of the population that consciously or unconsciously undermine this ideal - think Muslims, Jews and people who advocate horizontal solidarity, such as Marxists - are the natural enemies of the accelerationist.
The formal objective of The Base is survival training. However, in the US, paramilitary survival training is often a means to a controversial end. This is also the case with The Base, where training serves to prepare for what the accelerationist ideology seeks: it should prepare members mentally and physically for the upcoming civil war. That is, both an intellectual and physical effort is required on the part of participants. Rinaldo Nazzaro said he was not looking for "keyboard heroes", but for people who actually wanted to work on their military skills and wanted to take action. The Base's motto reads "Learn, Train, Fight". That tone is reflected in training videos, in which the organisation presents itself as a Nazi militia equipped with firearms, flag and Hitler salute.
In the US, two synagogues were defaced by two members of The Base on 22 and 23 September 2019. When one of them is interrogated, he states that he had considered committing bigger attacks and following the example of Timothy McVeigh who killed 168 people by committing an attack in 1995.
In the final months of 2019, three other The Base members developed the plan to kill two supporters of Antifa, a radical left-wing organisation, by setting fire to their house. This plan could be foiled in time by the FBI.
Moreover, The Base members appeared heavily armed at a Black Lives Matter demonstration in June 2020.
From The Base's central organisation, actions are taken to incite people around the world to action and violence. Besides appeals, the organisation also offers on its website an extensive collection of manuals for potentially violent loners, weapon use and weapon manufacture that would make acts of violence more effective.
All this is corroborated in a recent (public) publication by the National Coordinator for Counterterrorism and Security (NCTV) entitled 'Dreigingsbeeld Terrorisme Nederland No. 55' of October 2021, which states (page 16):
"(...) This small offline organisation (around 50 members) with an online presence, through which The Base
distinguishes itself from the networks described here that mainly manifest themselves online, gained prominence in 2019 and 2020 when the FBI arrested 10 followers. This dealt the organisation quite a blow. Not only because of the number of detainees, but also because a key leader was arrested. The organisation is listed as a terrorist in the United States, Canada and Great Britain. The original leader and founder, Rinaldo Nazarro, currently resides in Russia and from that country he is still trying to recruit members and incite terrorist acts."
The aim of The Base is to unleash a race/civil war. Through violence and the use of (fire)arms, a white ethnostate is to be established in which there is no place for Jews, Muslims and people of a darker skin colour.
Against the backdrop of this right-wing extremist ideology, the aforementioned facts and circumstances, considered together and collectively, provide sufficient grounds to hold that terrorist intent, consisting of inciting fear in (part of) the population and/or serious disruption/destruction of fundamental political, constitutional, economic and social structures, could be ascertained.
Re b) The accused's participation in The Base
The accused exchanged messages about The Base via the chat app called "Wire" in October 2019. In these, he reports that he and [co-accused] are the first two Dutch nationals in The Base. These messages also reveal that the accused successfully went through a ‘vetting procedure’ and that he was in an interview room with six members of The Base from other countries during the same period.
On 31 October 2019, the accused and [co-accused] chatted about doing an assignment with posters or spray painting The Base's logo on an abandoned building, after which they would become official members. At the first instance hearing and on appeal, the accused confessed to actually having spray painted The Base's logo on a wall on behalf of The Base.
Furthermore, various Telegram contacts show that the accused put other people in touch with The Base. For example, on 25 November 2019, when asked how to find a local national socialist group in real life, the accused replied 'The Base'.
On 23 December 2019, the accused and [co-accused] chatted with two others. In those chats, they answered questions regarding The Base, such as how to become a member of The Base. They also said that they were the only members of The Base in the Netherlands and the leaders of the Dutch cell. On the same day, [co-accused] also sent a propaganda video of The Base with training footage showing shooting with automatic firearms and the use of explosives. Images are also shown in which a handgun is fired at a Star of David.
On 29 January 2020, the accused said in a WhatsApp conversation that he was in two 'Siege groups', namely Feuerkrieg and The Base.
Finally, Wire contacts reveal that the accused recruited at least two people for The Base in February 2020.
Re c) Intent of the accused
The defence's contention that the accused merely thought that The Base was a survival group is disproved by the content of the evidence.
On the basis of the foregoing, taken as a whole, the Court of Appeal is of the opinion that the accused belonged to The Base, an alliance aimed at committing terrorist offences, and that, in addition, he also had a share in conduct related to the realisation of the aim of that organisation.
This leads the Court of Appeal to a declaration of charges proven under Count 1.
Criminal nature of the proven facts
The charges proven under Count 1 constitute:
participation in an organisation whose aim it is to commit terrorist offences.
The charges proven under Count 2 (A) (i) first and second indent constitute:
publicly inciting, in writing and pictures, to commit some criminal offence, where the offence incited involves a terrorist offence, committed several times
The charges proven under 2 (A) (i) third indent and B constitute:
two or more offences converging in the same act, namely publicly inciting, by visual means, to any criminal offence, when the criminal offence incited involves a terrorist offence
and
distributing and possessing for distribution an image inciting to a terrorist offence, knowing that the image contains such incitement.
Criminal liability of the accused
No circumstance has become plausible that might exclude the criminal liability of the accused. The accused is therefore criminally liable.
Grounds for the sentence
The Court of Appeal has determined the punishment to be imposed on the basis of the seriousness of the offences and the circumstances under which they were committed and on the basis of the personality and the personal circumstances of the accused, as these have appeared from the Court of Appeal hearing.
In so doing, the Court of Appeal has particularly taken the following into account.
The severity of the offences
Together with the District Court, the Court of Appeal considers that in the proven manner the accused was a member of right-wing extremist and terrorist organisation The Base. The accused was also guilty of incitement on social media and distributing an image of a right-wing extremist nature that undeniably incited to a terrorist offence.
Accelerationism, namely the right-wing extremist ideology that seeks to create or stir chaos in order to accelerate a racial war and the replacement of democracy with a white ethnostate, is a right-wing extremist ideology spread through various social media channels. Its followers glorify and justify terrorist violence to accelerate the unleashing of a race war. In so doing, they want to create chaos in society in which the current political system can then be replaced by a white (national socialist) ethnostate.
Dreigingsbeeld Terrorisme Nederland, No 55, reveals that this ideology has become a fixed feature of the right-wing extremist landscape and has in part contributed towards some acts of terrorist violence or concrete plans to do so in the past two years.
Terrorism is internationally regarded as one of the severest crimes. It directly affects public order and/or the security and stability of a society and its citizens. Dutch society is diverse and everyone living in the Netherlands, regardless of their background and/or orientation, should be protected against terrorist violence. The accused totally disregarded this.
In the opinion of the Court of Appeal, the severeness of the offences calls in principle for the imposition of a prison sentence of considerable duration.
Extract from judicial records
The Court of Appeal has taken into account an excerpt regarding the accused from the judicial records dated 7 March 2023, which reveals that the accused has not been convicted before for committing criminal offences.
Report in respect of the person of the accused
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Accountability
Accountability
The expert witness report on the accused, dated 17 March 2021, shows - in summary and insofar as relevant - that the accused had autism spectrum disorder and a persistent depressive disorder at the time that the offences in question were committed. Since the accused had few or no friends in his spare time, he spent his time behind the computer. Here, he immersed himself in (neo)Nazism online and became more active on social media. Partly due to the socio-economic deprivation in which the family found itself for years, his own feeling of being disadvantaged (by the Dutch government), gloom and increasing anger, racist and violent beliefs grew.
Feelings of gloom and inferiority were less felt by the accused as a result of his connection to social media and his violent and his racist statements were empowered there, which promoted and perpetuated his online behaviour. It played a role when he decided to join The Base.
Due to his autism, it was difficult for the accused to properly apprehend the consequences of his behaviour and actions and to tune in to (virtual) others. Partly because of this, it was explainable that he could not adequately assess the risks to himself and those around him. However, the accused did have a sense of right and wrong: he estimated that what he did would not be approved by the outside world and deliberately did not share his online activities within the small network around him.
It is recommended that the accountability imputed to the accused with regard to the charges, if proven, be reduced.
Since the psychologist's conclusion is supported by her findings and by what also transpired during the hearing, the Court of Appeal – as did the District Court – endorses and adopts this conclusion. The Court of Appeal will take this into account in a mitigating sense in the punishment to be imposed below.
In a mitigating sense, the Court of Appeal, as did the District Court, further takes into account the young age of the accused at the time of the proven offences.
Community service, measure ex Art. 38z CC, special conditions and immediate enforceability
According to the progress report of the probation service dated 7 March 2023, the accused has cooperated with all reviews and the risk that the accused will commit a (similar) offence is currently assessed as low, given his cooperative attitude during treatment and his duty to report. The probation service advises against imposing community service on the accused, as the probation service considers the probability high that the accused will then be overcharged, given his activities and treatment. If the accused were to lose his job as a result of community service, this would again lead to disappointment, which would do nothing to help his fragile self-image and positive development. Furthermore, the probation service does not consider it desirable to impose the measure aimed at influencing behaviour or restricting freedom under Article 38z of the Criminal Code. However, the probation service does recommend maintaining the special conditions imposed and declaring them immediately enforceable.
As the probation service considers the imposition of community service and the measure under Article 38z of the Criminal Code not indicated on good grounds, the Court of Appeal will not impose said punishment and measure.
In view of the probation service's advice and the great importance of preventing recidivism, the Court of Appeal will impose a substantial part of the sentence to be imposed conditionally, with a probationary period of three years, and thereby reimpose part of the special conditions previously imposed, insofar as the Court of Appeal still considers them advisable at present.
In view of the circumstance that the offences proven under Counts 1 and 2 are directed against or cause danger to the inviolability of the body of one or more persons and that the risk of repetition of this type of offence must seriously be taken into account, the special conditions to be imposed will be declared immediately enforceable, in accordance with the probation service’s opinion of 7 March 2023.
The special conditions to be imposed and their immediate enforceability serve to consolidate the recently started positive behavioural change and to guarantee the unhindered progress of treatment, guidance as well as supervision. If not, the Court of Appeal is of the opinion that serious account must be taken of the fact that the accused will commit such a crime again.
Conclusion
The Court of Appeal is - all things considered - of the opinion that a partly suspended prison sentence of the duration mentioned below - the non-suspended part of which is equal to the duration of the pre-trial detention already undergone - constitutes an appropriate and necessary response.
Execution of the imposed prison sentence, if applicable, will take place entirely within the prison facility, until such time as the convicted person becomes eligible for participation in a prison programme, as referred to in Article 4 Penitentiary Principles Act, or arrangements for conditional release, as referred to in Article 6:2:10 Code of Criminal Procedure, are applicable.
Seizure
By judgment appealed against, a decision was made regarding the seized items.
At the appeal hearing, the defence noted that the accused stated to the police that he was relinquishing the seized items, except for a particular T-shirt. The accused has since recovered this T-shirt. At the hearing, counsel informed - contrary to his written arguments - that the defence was adhering to the Court of Appeal’s opinion regarding the seized items.
At the hearing, the Advocate General announced that, in view of counsel's observation that now that the accused had recovered the T-shirt in question, and the accused had relinquished the other seized items, it was up to the Public Prosecution Service to deal with the seizure and that the Court of Appeal did not need to take a decision as to the seized items.
In view of the facts described above, now that it has been established that the accused has recovered said T-shirt and relinquished the other seized items, the Court of Appeal will not take a decision regarding seizure.
Applicable legal provisions
The Court of Appeal has taken into account Articles 14a, 14b, 14c, 14e, 55, 57, 131, 132 and 140a of the Criminal Code, as they apply or applied in law.
JUDGMENT
The Court of Appeal:
Sets aside the decision appealed against and pronounces judgment anew:
Annuls the preliminary summons insofar as it relates to "among which" as charged under 2 A (i), (ii) and (iii).
Declares, as considered above, that it has been proven that the accused has committed the charges under Counts 1 and 2.
Declares that any additional charges or charges formulated otherwise than those proven above have not been proven and acquits the accused thereof.
Declares the facts proven under Counts 1 and 2 punishable, qualifies them as stated above and declares the accused punishable.
Sentences the accused to a term of imprisonment of 24 (twenty-four) months.
Orders that a part of the term of imprisonment, of
16 (sixteen) months, will not be enforcedunless the judge later orders otherwise because the accused has before the end of a probationary period of
3 (three) yearsbeen guilty of a criminal offence or because the accused has, during the probationary period of 3 (three) years for the purpose of establishing his/her identity, not cooperated in providing one or more fingerprints or has not presented an identity document as referred to in Article 1 of the Compulsory Identification Act for inspection or has not cooperated in the probation supervision referred to in Article 14c of the Criminal Code, not cooperated in home visits and reporting to the probation institution as often and for as long as the probation institution deems necessary, or has not complied with the special conditions to be mentioned below.
3 (three) yearsbeen guilty of a criminal offence or because the accused has, during the probationary period of 3 (three) years for the purpose of establishing his/her identity, not cooperated in providing one or more fingerprints or has not presented an identity document as referred to in Article 1 of the Compulsory Identification Act for inspection or has not cooperated in the probation supervision referred to in Article 14c of the Criminal Code, not cooperated in home visits and reporting to the probation institution as often and for as long as the probation institution deems necessary, or has not complied with the special conditions to be mentioned below.
Sets as a special conditionthat during the entire probation period, the convict shall not (be allowed to) contact, seek or have contact in any way with the persons listed below, with effect from today, for as long as the Public Prosecution Service considers it necessary:
- [ co-accused], date of birth [date of birth] 2000
- members of The Base
- members of Feuerkrieg Division
- Rinaldo Nazarro, founder of The Base (pseudonyms Norman Spear and Roman Wolf).
Sets as a special conditionthat the convict is obliged to report to the Dutch Probation Service during the entire probation period, as long and as frequently as the probation service deems necessary.
Sets as a special conditionthat the convict will cooperate in (an indication for) outpatient treatment if the probation service deems it necessary.
Sets as a special conditionthat the convict will cooperate in an indication and placement for a stay in a sheltered housing facility and will comply with the instructions given by or on behalf of the director of that facility for as long as the probation service deems necessary.
Orders that the special conditions be imposed immediately enforceable.
Instructs the probation service to monitor compliance with the aforementioned special conditions and supervise the convict for that purpose.
Orders that the time spent by the accused in any form of pre-trial detention within the meaning of Article 27, paragraph 1 of the Criminal Code before the execution of this judgment, shall be deducted when implementing the prison sentence imposed, insofar as that time has not already been deducted from another sentence.
This judgment was delivered by M.A.J. van de Kar LLM,
Th.W.H.E. Schmitz LLM and B. Stapert LLM, in the presence of M.J.J. van den Broek LLM, Court Clerk.
It was pronounced at the public hearing of the Court of Appeal on 20 April 2023.